SCOTUS Refuses to Reinstate West Virginia Law Keeping Males Off Female Sports Teams

The Supreme Court has declined to remove an appeals court order that indefinitely blocks the West Virginia law designed to prevent biological male athletes from competing in sports teams designated for female students.

Two conservative justices, Samuel Alito and Clarence Thomas, disagreed with the court’s decision not to remove the injunction.

The Save Women’s Sports Act, which was enacted by West Virginia in 2021, bars students from participating in school sports on the basis of gender identity. Other states, including Arkansas, Florida, Idaho, Mississippi, and Montana, have passed similar laws to keep males from competing in women’s sports.

The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of a 12-year-old who identifies as female but was born male and was unable to join a girls’ cross-country team due to the law. The ACLU claimed that the Save Women’s Sports Act was unconstitutional because it violated Title IX, which prohibits gender-based discrimination in education, and the Equal Protection Clause in the 14th Amendment to the Constitution.

A federal district court initially blocked the state law temporarily in July 2021, and the state did not appeal the injunction for 18 months. The court then reversed course and removed the injunction before a divided panel of the 4th Circuit Court of Appeals issued an injunction, suspending the law.

Although this is the first time that the Supreme Court has ruled on restrictions on transgender athletes’ participation in college sports, this order does not constitute a ruling on the lawsuit’s merits, which remain pending before the 4th Circuit. Additionally, the Supreme Court may reconsider the case in the future.

The high court docketed the emergency application on March 13, and Chief Justice John Roberts, who oversees the 4th Circuit, referred the application to the full court. On April 6, the court issued a new unsigned order without a formal opinion or explanation for its decision.

In his dissent (pdf), Justice Alito criticized the 4th Circuit Court for issuing the injunction without justification, stating that “enforcement of the law at issue should not be forbidden by the federal courts without any explanation.” Justice Thomas joined the opinion.